Decision Date: August 8, 2017

Panel: Alan Andison

Keywords: Forest and Range Practices Act – ss. 46(1), 52(1); Forest Planning and Practices Regulation – s. 37; administrative penalty; landslide; ecological values; material adverse effect; consent order

Tolko Industries Ltd. (“Tolko”) appealed a determination issued by the District Manager (the “Manager”), Okanagan Shuswap Natural Resource District, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Manager determined that Tolko contravened section 37 of the Forest Planning and Practices Regulation (the “Regulation”) and sections 46(1) and 52(1) of the Forest and Range Practices Act (the “FRPA”) in relation to a landslide that occurred below Tolko’s cutblock and associated roads. The Manager levied an administrative penalties totalling $12,000 against Tolko for the contraventions.

The matter arose from a landslide that occurred in April 2012, in the vicinity of Sugar Lake about 50 km east of Vernon, BC. Between August 2011 and February 2012, Tolko harvested a cutblock in the area. Originally, the harvesting rights for the cutblock were held by Weyerhaeuser Company Limited (“Weyerhaeuser”), which had constructed the logging roads in the cutblock in 2002 and 2003. The harvesting rights were transferred to Tolko in 2004. The road permit was transferred to Tolko in 2005.

Tolko reported the landslide to the Ministry after being alerted to it by a resident. The landslide occurred downslope from the area Tolko had harvested, and the associated roads. The landslide caused soil and timber to slide downhill, causing scouring of a stream channel, soil damage, and the loss of Crown timber and regenerating trees.

Following an investigation by Ministry staff, and after giving Tolko (and Weyerhaeuser) an opportunity to be heard, the Manager concluded that Tolko’s forest practices caused the landslide. An inadequate number and placement of drainage structures on the logging roads directed increased water flows towards the area where the slide originated, and Tolko’s clearcut logging of the cutblock increased the timing and peak flow of runoff during a period of warm weather, all of which triggered the landslide. The Manager also concluded that Tolko did not take all reasonable care to prevent the contraventions, and therefore, the defence of due diligence did not apply. The Manager decided to impose the following penalties: $2,000 for contravening section 52(1) of the FRPA; $5,000 for contravening section 46(1) of the FRPA; and $5,000 for contravening section 37 of the Regulation.

Tolko appealed the Manager’s determination on the basis that the Manager erred in determining a causal connection between Tolko’s forest practices and the landslide. Tolko also argued that the Manager imposed too high of a due diligence standard, and erred in assessing the penalties. Tolko requested that the Commission reverse the determination, or alternatively, refer the matter back to the Manager with directions.

Before the appeal was heard by the Commission, the parties negotiated an agreement to settle the matter. The parties agreed that Tolko had contravened section 37 of the Regulation by failing to ensure that its timber harvesting did not cause a landslide that had a material adverse effect on legislated ecological values, and that a penalty of $8,000 was appropriate in the circumstances. By consent of the parties, the Commission varied the Manager’s determination as agreed to by the parties.

Accordingly, by consent of the parties, the appeal was allowed in part.